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Marriage amendment struck down in Georgia

By Jeff Emanuel

May 24, 2006

Judicial activism struck Georgia in a big way with a judge’s recent scrapping of a constitutional amendment preserving marriage as being between one man and one woman on the grounds that it was "presented incorrectly to voters." The amendment was on the ballot in November 2004, and the wording of the question--"Shall the Constitution be amended so as to provide that this state shall recognize as marriage only the union of man and woman?"--was apparently so confusing that almost 76 percent of Georgians were "fooled" into voting for it.

Instead of directly addressing the issue of gay marriage itself in her ruling, Fulton County Superior Court Judge Constance Russell decided to throw out the amendment on the perceived technicality that its ballot presentation violated the state constitution’s single-subject rule ("When more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately") because it required voters to decide on marriage and civil unions in a single amendment.

In digging up and dusting off the "single-subject" guideline, Russell ruled that Georgia’s voters must decide whether same-sex relationships should have any legal status before they can decide whether gay marriage should be banned. "People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place — although not marriage," she wrote.

Apparently of the opinion that banning both gay marriage and civil unions in one fell swoop is lumping together two completely unrelated subjects, Russell wrote that "the single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote." This ruling, which was incomprehensibly called "a victory for voters" (apparently referring to the 24 percent who voted against it) by an attorney for gay rights organization Lambda Legal, will not have an immediate legal effect in the state.

Georgia currently recognizes marriage as being only between one man and one woman, as provisioned in a state law passed by the legislature in 1996. Ironically, the 2004 amendment, which was worded almost identically to the existing law, was created in large part due to the unfortunate knowledge that an activist judge would one day find that law "unconstitutional."

The full text of the amendment reads:

(a) This state shall recognize as marriage only the union of man and woman.Marriages between persons of the same sex are prohibited in this state.

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship.

Without a permanent amendment to the state’s constitution, the assault on traditional marriage will continue. In turn, Governor Sonny Perdue almost immediately appealed Russell’s decision to the state’s Supreme Court.

He requested an expedited review of the case and announced that, should the court fail to overturn Russell’s ruling by August 7, he would call for the state General Assembly to convene in a special session beginning August 9, so that a new amendment proposal (or proposals, if it is deemed necessary to address both marriage and civil unions) can be passed in time to meet the August 14 deadline for ballot language certification, putting a revised amendment on the ballot this November. This incident is only the latest entry in the state's (and the nation's) ever-lengthening list of judicially activist judgments. Judges who legislate from the bench, and who violate their sacred oath to uphold the Constitution of the United States (and their own state), must be checked. Fortunately for Georgians, Judge Russell is an elected official, and can be voted out of office at the end of her four-year term.

In many other cases, though, activist judges have lifetime appointments. This has apparently caused many of them to believe that they are so far above the law and the citizenry that they no longer even have to pay lip service to either. These people must be held accountable by allowable legal process, and new, non-activist (constructionist) judges must be appointed at as quick a rate as possible to fill the vacancies on benches across America.

Amending the constitution is the only sure way to avoid often-abused judicial review; therefore, judges in the state of Georgia (and elsewhere) must at the very least be rendered less easily able to declare unconstitutional amendments to the constitution itself, as this ability gives them all but uncheckable power.In an election year—especially a gubernatorial one—this ruling, should it lead to a de facto "re-vote" on the amendment, is a political blessing in disguise for Republicans. The chance to strike back at an activist judge who summarily ignored their will as exercised by ballot two years ago, and to make a statement against two lightning-rod issues at once—judicial activism and the perversion of marriage—should bring conservatives to the polls in droves this November.

This increased turnout should ensure not only that marriage in Georgia will be protected for the foreseeable future, but also that Republicans get a boost from the top of the ticket down this year. If the marriage amendment is on the ballot again in 2006, look for Georgia not only to remain Republican, but to increase its majorities overwhelmingly.

Jeff Emanuel, a Special Operations military veteran, studies Classics at the University of Georgia. He is also a contributing editor for conservative web log RedState.com, and is a columnist for the Athens, GA Banner-Herald newspaper.